State v. Robert Torres, 2017 WI App 60; case activity (including briefs)
It’s unclear why this opinion is recommended for publication–it seems to be a pretty straightforward application of the law to a particular fact situation.The police got a call from the downstairs tenant in a two-unit apartment building, reporting “narcotics in progress.” When the police arrived, the downstairs tenant told them that a teenager had been living on his own upstairs for several days while his parents were out of town. She had called because “an underage party” was underway, and the smell of burnt marijuana permeated the building. She also told the police that several people had already run out of the upper unit, possibly because they heard her say she was summoning the police.
The officers went around to the back porch, where they encountered a young male fleeing out the door. He said he did not live there, but offered to go up and get his friend, who did. The police followed him up the stairs, and when he got to the top, he darted inside. The officers eventually went into the apartment and discovered evidence of several crimes.
The circuit court held the entry a lawful community caretaker action, but the court of appeals instead decides the case under the exigent circumstances doctrine. Specifically, it holds that the odor of marijuana and the downstairs neighbor’s report constituted probable cause, and that once the friend became aware of the police’s presence, the threat that the apartment’s occupants would dispose of any marijuana created an exigency.
At the moment A.S. turned and proceeded up the stairs, the officers were faced with the immediate choice of either permitting A.S. to continue to the upper unit unaccompanied, accompanying him up the stairs as they did, or detaining him for an unknown length of time and preventing him from contacting Torres (so that Torres would not be clearly alerted to the police presence at the door) while they pursued a warrant or knocked on Torres’ door in an attempt to have Torres promptly produce himself. There is no indication here that had A.S. not chosen to turn around and begin heading up the stairs that the officers would have decided on their own to ascend the stairs without a warrant. Torres has presented us with no case law, and we are aware of none, indicating that when faced with a choice similar to the one the officers faced here, a law enforcement officer acts unreasonably by making the split-second determination to follow the individual into the residence in order to prevent the otherwise likely destruction of evidence, as opposed to taking the alternative constitutionally challengeable action of detaining the individual. We conclude the officers acted reasonably in how they responded to the exigent circumstance they faced when A.S. turned and began heading toward the upper unit.
There’s a concurrence from Judge Neubauer, who posits that the “ongoing hazardous nature of marijuana smoking and underage drinking, and the threat of bodily harm to those involved or nearby” also justified the warrantless entry.
Well…at least they didn’t uphold it under the community caretaker doctrine. That would have been thin, and that doctrine is already too broadly construed in favor of police.